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In Intellectual Property at the Edge: The Contested Contours of IP (R. Dreyfuss and J. Ginsburg, eds.) (2014)


In intellectual property discourse, the edge tends to be defined by disputes between producers and consumers or between upstream and downstream innovators. This Chapter tells a different kind of story, about the edge between the patent-based innovation system and a user innovator community governed by norms of reputation and sharing. In this story, a cataract surgeon’s attempt to enforce his surgical method patent in the early 1990s brought forth a surprisingly strong response from the medical profession. The incident generated a reaffirmation of the norm in the AMA’s ethical principles and a political movement that led to Congress’s passage of Section 287(c) of the Patent Act, exempting medical professionals from patent remedies in many cases. The Chapter argues that these events are fruitfully understood in light of the rejection of patenting by many user innovator companies in favor of norms-based systems of free revealing and sharing accompanied by reputational rewards.

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